The Estate of Alan Bruce Beeby

[2020] NSWSC 1512

Supreme Court

New South Wales

Medium Neutral Citation:

The Estate of Alan Bruce Beeby [2020] NSWSC 1512

Hearing dates:

In Chambers and on the papers

Date of orders:

29 October 2020

Decision date:

29 October 2020

Jurisdiction:

Equity

Before:

Hallen J

Decision:

The Court:

(a) Declares that the Court is satisfied that Alan Bruce Beeby died on 26 January 2020, during a voyage to a port in the State of New South Wales.

(b) Orders that subject to compliance with the Probate rules of Court, Probate in common form of the Will dated 17 November 2017 of Alan Bruce Beeby be granted to the Plaintiff.

(c) Dispenses with the requirement to file a death certificate of Alan Bruce Beeby, unless and until a notice given by a coroner under ss 34(1) or (2) of the CoronersAct2009 (NSW) for the purpose of effecting, or completing, registration of the death is issued.

(d) Orders that the matter be remitted to the Senior Deputy Registrar in Probate to complete the grant.

(e) Orders that the Plaintiff’s costs, calculated on the indemnity basis, of the proceedings be paid out of the estate of Alan Bruce Beeby.

Catchwords:

SUCCESSION – Probate and administration – Practice and procedure – Probate of Will – Where person travelling on vessel which capsized – Where he entered the sea and then not seen again – Extensive searches conducted in an attempt to locate the person – Where no body found – No death certificate issued – Whether Court is able to order issue of death certificate – Registrar of Births, Deaths and Marriages joined as party – Submitting appearance entered – Whether Probate required to be granted on presumption of death or whether evidence established on balance of probabilities that death has occurred without need for words “on presumption of death” to be included on Probate – Court satisfied on balance of probabilities of the death

Legislation Cited:

Births, Deaths and Marriages Registration Act 1995 (NSW), ss 36, 37, 38, 39, 49

Coroners Act 2009 (NSW), s 34

Probate and Administration Act 1898 (NSW), ss 40, 40A

Supreme Court Act 1970 (NSW), s 75

Uniform Civil Procedure Rules 2005 (NSW), r 6.11

Cases Cited:

Application by Walsh & Anor (Estate of Robert Charles Walsh (deceased)) [2020] NSWSC 976

Axon v Axon (1937) 59 CLR 395; [1937] HCA 80

Bass v Permanent Trustee Company Limited (1999) 198 CLR 334; [1999] HCA 9

Chard v Chard [1956] P 259

Church of the Foursquare Gospel (Australia) Ltd v New Hope Church Swansea Inc [2019] NSWSC 519

Clarence City Council v Commonwealth of Australia (2020) 382 ALR 273; [2020] FCAFC 134

Crawford v Davidson-Crawford [2019] NSWSC 728

Croft v Dunphy [1933] AC 156

D v Commissioner of Taxes [1941] St R Qd 218

Estate of Lyn Burtonwood [2020] NSWSC 715

Forster v Jododex Australia Pty Limited (1972) 127 CLR 421; [1972] HCA 61

Lavender v Director of Fisheries Compliance, Department of Industry Skills and Regional Development (2018) 359 ALR 96; [2018] NSWCA 174

New South Wales v Commonwealth (1975) 135 CLR 337 at 408; [1975] HCA 58

Port Macdonnell Professional Fishermen’s Association Inc v The State of South Australia (1989) 168 CLR 340; [1989] HCA 49

R v Szabo [2020] ACTSC 175

Russian Commercial and Industrial Bank v British Bank for Foreign Trade, Limited [1921] 2 AC 438

The State of Western Australia v Edwards [No 7] [2020] WASC 339

Zetting v Müller [2017] NSWSC 659

Texts Cited:

J D Heydon, Cross on Evidence (2020, LexisNexis)

P W Young, Declaratory Orders (2nd ed, 1984, Butterworths)

Category:

Principal judgment

Parties:

Lorraine Anne Beeby (Plaintiff)
Registrar of Births, Deaths and Marriages (Defendant)

Representation:

Counsel:
G McGrath (Plaintiff)
Submitting Appearance by Defendant

Solicitors:
Roberts Legal (Plaintiff)
Crown Solicitor’s Office (NSW) (Defendant)

File Number(s):

2020/00090778

Judgment

1. HIS HONOUR: By amended Summons filed on 7 September 2020, the Plaintiff, Lorraine Anne Beeby, seeks Probate of the Will dated 17 November 2017 of her husband, Alan Bruce Beeby. (A Summons seeking a grant of Probate of that Will had been filed on 9 April 2020.)

2. Mr Beeby left property in New South Wales. There is, therefore, jurisdiction to grant probate of the Will, subject to what is set out below: Probate and Administration Act 1898 (NSW), s 40.

3. It is fundamental to any application for probate or letters of administration to show that the person whose estate would be the subject of the proposed grant is, in fact, dead. That is usually satisfied by the presentation of a death certificate. No death certificate has been issued in this case, but it is a case in which the person is missing, albeit for far less time than seven years (see Axon v Axon (1937) 59 CLR 395; [1937] HCA 80), and for reasons to which I shall come, is believed to be dead.

4. The Summons, as filed, sought a grant of Probate on presumption of death, pursuant to s 40A(1) of the Probate and Administration Act, which provides:

Where the Court is satisfied, whether by direct evidence or on presumption of death, that any person is dead, the Court shall have jurisdiction to grant probate of the person’s will or administration of the person’s estate, notwithstanding that it may subsequently appear that the person was living at the date of the grant.

5. The Senior Deputy Registrar in Probate issued requisitions on 29 May 2020 that required the applicant to file:

1. a death certificate because the Court, generally, will not allow death to be proved other than by a death certificate;

2. a Coroner’s report, or at least reports of any searches for the body of the deceased, by the Water Police; and

3. additional affidavits by the persons who would be likely to have heard from the deceased and who have not, stating if there were any suspicious circumstances, such as large debts owed by Mr Beeby.

6. The learned Senior Deputy Registrar noted that “the Court is reluctant to apply the presumption of death absent the above information”. She added that “[f]urther requisitions may flow”.

7. (I should mention that the evidence available to the learned Senior Deputy Registrar in Probate was far less extensive than the evidence that has now been made available. In addition, a Registrar does not have power to make the declaration, and all of the orders, subsequently sought by the Plaintiff.)

8. The Plaintiff was unable to satisfy the requisitions and the matter was listed in the Succession List on 4 September 2020. However, shortly before that date, I had an opportunity to consider the contents of the Court file, and, at my request, on 2 September 2020, my Associate sent the following email to the solicitor for the Plaintiff:

“Dear Ms Roberts,

This matter has been referred to his Honour.

To enable the matter to progress, it is necessary to obtain a Death Certificate. However, his Honour notes that attempts have been made to do so without success.

Please give consideration to whether an amended Summons should be filed and served naming the Registrar of NSW Births Deaths and Marriages as a Defendant. If no appearance, or submitting appearance, is filed, his Honour will give consideration to directing the issue of a Death Certificate. However, this would only be done, after the matter is determined by his Honour.

Also, please consider what further evidence will be required so that directions [may] be made.”

9. The basis of the email was a consideration of s 36(1) of the Births, Deaths and Marriages Registration Act 1995 (NSW), which requires that deaths in NSW be registered under the Act; the recognition, relevantly, that a death cannot be registered without a notice from a registered medical practitioner (Births, Deaths and Marriages Registration Act, s 39), or a notice given by a coroner under s 34 of the Coroners Act 2009 (NSW): Births, Deaths and Marriages Registration Act, s 38(1); s 36(2) of the Births, Deaths and Marriages Registration Act, which provides that if a court orders the registration of a death, the death must be registered under the Act; s 37 of the Births, Deaths and Marriages Registration Act, which provides that, if a court (including any court of another State or the Commonwealth), finds that a person whose death is not registered under the Act died in the State, the court may order registration of the death; and s 38(2)(a) of the Births, Deaths and Marriages Registration Act, which provides that, despite the requirements of s 38(1), a death is to be registered if a court orders the registration of the death.

10. When the matter was mentioned on 4 September 2020, the Court granted leave to the Plaintiff to file and serve an amended Summons joining the Registrar of NSW Births Deaths and Marriages as a Defendant. In addition, an order was made for general access to documents produced in answer to subpoenas that had been issued to the Australian Maritime Safety Authority (AMSA) and the NSW Police Force.

11. On 7 September 2020, the Plaintiff filed an amended Summons joining the Registrar of Births, Deaths and Marriages and seeking the following relief:

1. A declaration that Alan Bruce Beeby died on 26 January 2020 on a ship during a voyage to a port in the State of New South Wales;

2. An order that the death of Alan Bruce Beeby be registered pursuant to section 36(2) of the Births Deaths and Marriages Registration Act 1995 (NSW);

3. A grant of probate in common form of the last will of the late Alan Bruce Beeby made on 17 November 2017; and

4. An order referring the proceedings to the Registrar to complete the grant.

Alternatively to orders 1, 2, 3 and 4 above:

1. A declaration that the Court is satisfied that Alan Bruce Beeby:

   (a)    is dead;

   (b)    died on 26 January 2020;

   (c)   at sea north of Seal Rocks and east of the New South Wales coastline.

2. A grant of probate in common form pursuant to section 40A Probate and Administration Act 1898 (NSW) of the last will of the late Alan Bruce Beeby made on 17 November 2017; and

3. An order referring the proceedings to the Registrar to complete the grant.”

   12. On 22 September 2020, unsurprisingly, the Registrar of Births, Deaths and Marriages filed a submitting appearance “in respect of all claims made, save as to costs”: Uniform Civil Procedure Rules 2005 (NSW), r 6.11.

   13. Having made a direction that if that occurred, the Court should be advised whether the matter could be determined “on the papers and in Chambers”, the legal representatives of the Plaintiff so advised. On 2 October 2020, Mr G McGrath, counsel for the Plaintiff, requested the Court to take that course. I agreed to do so.

   14. In order to assist the Court, counsel provided a Court Book of copy affidavits and other evidence, together with detailed written submissions. I am most grateful to the legal representatives of the Plaintiff for providing the assistance to the Court that they have.

   15. The disappearance and, one might think, apparently certain death of Mr Beeby, have created the practical difficulties in obtaining a death certificate and a grant of probate of his Will.

Salient facts

16. I have taken what follows from the affidavits that are in the Court file and the folder, comprising 116 pages of copy documents some of which were produced in answer to subpoenas issued on behalf of the Plaintiff. The bundle of copy documents was marked Ex A in the proceedings. None of the deponents have given oral evidence.

17. As will be read, the evidence includes the description, age and circumstances of Mr Beeby, that he left a Will, the circumstances of his disappearance, the enquiries that have been made concerning the events that occurred at the time of the disappearance, and other facts that render his death probable.

18. Mr Beeby was born in March 1945, and at the date of the events to which reference will be made, was almost 75 years old.

19. As stated, the Plaintiff is Mr Beeby’s wife. They were married in August 1974 and remained married, and living together, at the date of the events referred to. There were two children of the marriage being Alan Scott Charles Beeby (Scott) and Alison Anne Szysz. Each is an adult. Each of the family members has provided evidence by way of affidavit that has been read in these proceedings.

20. Mr Beeby left a duly executed Will dated 17 November 2017. After revoking all prior testamentary instruments, he appointed the Plaintiff as the executor and left the whole of his estate to her.

21. It is unnecessary, in the circumstances of this case, to set out the nature and value of his estate, but it is clear that the Plaintiff requires Probate to be granted to enable her to complete the administration of Mr Beeby’s estate. Subject to satisfying any other requisitions, there does not appear to be any impediment to the grant of Probate, which application is otherwise uncontested.

22. I turn next to the tragic events that give rise to the application.

23. In early January 2020, Mr Beeby purchased a second hand 42 foot Halvorsen Coastal Cruiser (“Eliza 1”). The date of purchase is not found in the evidence, but on 14 January 2020, he insured it with Trident Marine Insurance.

24. Whilst Mr Beeby did not obtain a survey report himself, being satisfied with a recent report that had been obtained, he did have the vessel removed from the water and conducted checks on it.

25. On 24 January 2020, Mr Beeby met with his son, Scott, at Sanctuary Cove, Queensland, and prepared the vessel to sail to Newcastle, New South Wales, where he and the Plaintiff lived. Both Mr Beeby and Scott were very experienced mariners. They left the Marina at Sanctuary Cove at about 5:00 p.m. or 6:00 p.m. and sailed through the night of 24 January 2020 in three hour shifts. They broke their journey at Port Macquarie, where they purchased fuel. They departed at about 8:00 p.m. on 25 January 2020.

26. At approximately 11:00 p.m. on 25 January 2020, Mr Beeby told Scott that he wanted to get some rest and he went below to the v-berth of the vessel. He may have taken some sea sickness medication and was tired and lethargic: Ex A/13. There was also evidence that Mr Beeby suffered from high blood pressure, was coughing and that he had a bit of a cold: Ex A/5.

27. Scott remained at the helm and recalled looking at his mobile phone “Navionics” application at around 2:00 a.m. on 26 January 2020, which identified their location as being 15 nautical miles north of Seal Rocks, and 16 nautical miles east of the New South Wales coastline. At the time, the sea state was 1.0 to 1.5 metre seas from the north, with a 1 metre swell from the east. Winds were 10 to 15 knots, the sea surface temperature was 23 degrees Celsius and the air temperature was 21 degrees Celsius.

28. Scott felt the vessel start to surf and broach to starboard before laying over to port. It did not then right itself. Sea-water covered the gunwale, windows and side door. Water entered the saloon.

29. Scott grabbed the Emergency Position Indicating Radio Beacon (EPIRB), entered the vessel and pulled Mr Beeby clear. At some point, he became stuck below the surface of the water but was freed by Scott and they both surfaced. Scott then heard Mr Beeby gasp for air.

30. Mr Beeby, who was then holding onto Scott, lost his grip. Scott’s attempt to grab hold of him was unsuccessful and they became separated. Scott swam to the duck board and called out to his father but did not see, or hear, him again.

31. Scott stood at the bottom of the hull of the boat and activated the EPIRB to alert search and rescue services. The signal was received at the satellite at 1:37 a.m. on 26 January 2020 AEST. Shortly thereafter, Scott swam to the inflatable tender, which had floated free, and climbed aboard.

32. AMSA acted swiftly and diverted a number of vessels to the area, notified the NSW Water Police, at Port Stephens, and undertook a radiotelephony Pan-Pan broadcast at 1:59 a.m., (which I understand to be a three-letter backronym, “possible assistance needed” or “pay attention now” and is used in maritime and aeronautical radio communications as an international standard urgency signal that someone aboard a boat, ship, aircraft, or other vehicle declaring that he, she, or they, have a situation that is urgent).

33. At 3:13 a.m., the inflatable dinghy with Scott aboard was located by the Westpac Rescue Helicopter. By 3:32 a.m., the MV Morobe Chief, which had earlier been diverted to assist in the search, picked up Scott.

34. During the course of the next few hours, other ships, as well as the MV Morobe Chief, were diverted to assist in the search for Mr Beeby. The extent of the searches is set out in the documents produced by AMSA. Aerial searches were undertaken.

35. At 5:13 a.m., Volunteer Marine Rescue Vessel Foster 30, reported that the vessel on which Mr Beeby had been sailing was sitting on her port side and was full of water but still floating. Around 6:00 a.m., the NSW Water Police retrieved Scott from the MV Morobe Chief.

36. At 6:59 a.m., the NSW Water Police advised of the details of an interview with Scott.

37. At 7:51 a.m., a representative of AMSA, spoke to Dr Paul Luckin, a well-known survival expert, who is regularly consulted on matters pertaining to survivability, “to gain his expert medical opinion on time frame for survivability”. The initial comment recorded in the AMSA Incident Timeline was “[n]o prospect he is alive”. Dr Luckin’s advice appears to have been:

“– The missing person is unlikely to have survived once separated from the rescued person.

– However, if he had survived from this point then the timeframe for survival would expire by 260000UTC.”

38. At 8:18 a.m., the Joint Rescue Co-ordination Centre advised their intention was to search the current sortie and to suspend the search at the expiry of the time frame for survival based upon medical advice.

39. All air assets were stood down by AMSA and the sea search was concluded at 3:00 p.m. due to the sea state and conditions, although it appears that the Police launch, Intrepid, was scheduled to commence searching (presumably for the body) in the morning of 27 January 2020: Ex A/14. At the time the search was concluded, Mr Beeby had not been found alive or dead. It appears that all reasonable efforts were made to find him.

40. Sadly, but not surprisingly, given the circumstances, the body of Mr Beeby has not been found. There is evidence that Mr Beeby has not been seen, or heard from, since the events to which reference has been made. There is no evidence of him having used any bank accounts, or having dealt with any of his property.

41. I am satisfied that the date that he was last seen, or heard from, was 26 January 2020.

The Law

42. When it becomes necessary, in legal proceedings, to establish the death of a person, the party on whom the burden of proving that issue lies, may do so directly, indirectly, or presumptively.

43. I have earlier referred to s 40A of the Probate and Administration Act. In this case, the part of the section that is important is the reference to the Court being satisfied “… by direct evidence … that any person is dead”.

44. Whether or not a person is dead is a question of fact. It follows that it is possible for a person to be found to be dead, even where that person’s body has not been found.

45. In J D Heydon, Cross on Evidence (2020, LexisNexis), the following appears at [1110]:

“Circumstantial evidence is usually contrasted with ‘direct evidence’ — a term which is employed in two senses. In its first sense ‘direct evidence’ is testimony, as contrasted with hearsay, and may therefore be defined as an assertion made by a witness in court offered as proof of the truth of any fact asserted by the witness, including the witness’s own mental or physical state at a given time. In its second sense, ‘direct evidence’ means a witness’s statement that the witness perceived a fact in issue with one of the five senses, or was in a particular mental or physical state if that is in issue; and the contrast is with circumstantial evidence. When someone testifies to having seen an alleged murderer carrying a blood-stained knife, the evidence is direct in the first sense, but not in the second.” (emphasis in original) (citations omitted)

46. Thus, direct evidence is evidence of the event, or occurrence, as observed by a witness or recorded by some device: The State of Western Australia v Edwards [No 7] [2020] WASC 339 at [162] (Hall J). In other words, it is evidence which tends to prove a fact directly: typically, when the witness testifies about something which he, or she, personally saw or heard: R v Szabo [2020] ACTSC 175 at [13] (Elkaim J).

47. Indirect, or presumptive, evidence means that other facts are proved, from which the existence of the given fact may be logically inferred.

48. The issue then is whether the Court is satisfied on the balance of probabilities that the death of Mr Beeby has occurred.

49. Where there is no acceptable direct evidence that a person was alive at some time during a continuous period of seven years or more, and it is proved (1) that there are persons who would be likely to have heard of him over that period; (2) that those persons have not heard of him; and (3) that all due inquiries have been made appropriate to the circumstances, there arises a rebuttable presumption of law that the person died at some time within that period, and the party upon whom the burden falls of proving the death of the person may rely on that presumption: Chard v Chard [1956] P 259 at 272 (Sachs J). This presumption does not apply in this case.

50. The Plaintiff relies upon direct, or in the alternative, indirect, evidence. Scott observed the events as they occurred and has given evidence of what he observed. There is also direct evidence that searches were carried out to find Mr Beeby and that they were completed without success.

51. I have recently dealt, in two cases, with some of the issues that arise in this case.

52. In Application by Walsh & Anor (Estate of Robert Charles Walsh (deceased)) [2020] NSWSC 976 at [33]–[36], I wrote:

“In Re Parker [1995] 2 Qd R 617, Lee J wrote at 621:

‘When it becomes necessary in a legal proceeding to establish the death of a person, the party on whom the burden of proving that issue lies may do so directly, circumstantially or presumptively: cf Axon v Axon (1937) 59 CLR 395 at 403 per Dixon J.’

The standard of proof is the balance of probabilities.

Where a court is unable to draw an inference of death from facts given in evidence, it may have resort to what has been described as ‘the presumption of death’ ...

It is important not to confuse the process of inferring death from the evidence available, and the application of the presumption of death at law. The learned authors of Stephen Janes, David Liebhold and Paul Studdert, Wills, Probate and Administration Law in New South Wales (2nd ed, 2020, Lawbook Co), write at 637:

‘Care needs to be taken not to confuse proof of death by inference from proof of death by presumption of law. With the former there is evidence from which the court may infer that it is more probable the person has died rather than be living. In the latter there is no evidence of death at all.’ (citations omitted)”

53. In relation to the inference of death, in Estate of Lyn Burtonwood [2020] NSWSC 715 at [13]–[17], I wrote:

“Section 40A of the Probate and Administration Act 1898 (NSW), relevantly, provides:

(1) Where the Court is satisfied, whether by direct evidence or on presumption of death, that any person is dead, the Court shall have jurisdiction to grant probate of the person’s will or administration of the person’s estate, notwithstanding that it may subsequently appear that the person was living at the date of the grant.

It has been written that ‘[a]n application for a grant on presumption of death occurs in all cases where the body is not found ... This is the case even though a certificate of death may have issued’: Leslie G Handler and Richard Neal, Mason and Handler Succession Law and Practice: New South Wales (LexisNexis Butterworths) at 9234 [5067]; Stephen Janes, David Liebhold and Paul Studdert, Wills, Probate and Administration Law in New South Wales (2nd ed, 2020, Lawbook Co) at 636.

In the text last referred to, there is reference to the meaning of the term ‘inference of death’. The learned authors write at 635–636:

‘In appropriate circumstances, an inference of death can be made where less than seven years has elapsed, and, indeed, in many, perhaps most, cases of disappearance, there is sufficient evidence to enable the court to infer death, and to decide that the death occurred within a comparatively short time of the disappearance.’ (citations omitted)

In my view, an inferred death is one where, although a body is not found or recovered, the death can be inferred from the surrounding circumstances, and where it can be inferred that it is more probable that the person has died, rather than that he, or she, is living.

Proving death by inference when a person has disappeared was described by Sachs J (as his Lordship then was) in Chard v Chard [1956] P 259 at 270 as:

‘... generally speaking, a matter in each case of taking the facts as a whole and of balancing, as a jury would, the respective probabilities of life continuing and having ceased.’”

54. At [25]–[35], I specifically dealt with drowning at sea. I wrote:

“There are some cases in which a grant of probate has been made in circumstances where death has been presumed after a period of less than seven years. An obvious example is where a person drowns at sea. (It is to be noted that under the law as it was when Prime Minister Harold Holt disappeared, an inquest could not be held without a body. The probate application in respect of his Will was made on the ‘presumption of death’.)

In Mackay v Mackay (1901) 18 WN (NSW) 266 at 269, Owen J (Cohen and AH Simpson JJ agreeing), quoting with approval the law as stated in Taylor on Evidence, by way of example, wrote ‘... if the party, when last heard of, was aged, or infirm, or ill, or had since been exposed to extraordinary peril such as a storm and probable shipwreck’. The Court, on the facts in that case, presumed that the man, who had been on the ship which was wrecked on a voyage to Brisbane, and who had not been heard of, or seen, again, had died in that shipwreck.

In Re Ryan [1990] 3 NZLR 91, the applicant, who was the widow of the missing person, applied for probate in common form of the last Will of her husband in circumstances where she could not directly prove his death. The Registrar required an application for presumption of death, and the question before Tipping J (as his Honour then was) was whether that application was necessary if the evidence provided a clear inference that death had occurred.

At 96, Tipping J wrote:

‘If a person is able to speak from direct knowledge of circumstances which, albeit not proving death with medical certainty, nevertheless enable an inference that death has in fact occurred to be drawn beyond any possible doubt then there is no need for the filing of an application for leave to presume death because, death having thereby been directly proved, its presumption is unnecessary ... [there are] facts from which death can be inferred as a moral certainty. It is a different case altogether from the case where someone dies in circumstances where no other surviving person is able to depose from his or her knowledge as to what occurred.

...

This is therefore a case where a grant of probate in common form is appropriate ...’

In Re Bennett (2006) 1 ASTLR 199 at 200 [8]; [2006] QSC 250, Atkinson J in a case where the application to the Supreme Court of Queensland was made in 2006, less than seven years after the disappearance of the professional diver, whose body was never found, and when he was never seen, or heard from, again, granted leave to swear to death and, following that, letters of administration, observing that it was unnecessary to wait for the passing of seven years to infer death in such a case. Her Honour wrote:

‘If, however, there is evidence before the Court from which the Court can safely infer that the person has died it is not necessary to wait the seven years for the Court to infer death.’

Her Honour later referred to Re Bennett and followed it in Maynard v The Estate of Maynard [2015] QSC 144 at [6].

In In the Estate of Green [2020] SASC 90, an application was made pursuant to r 68 of the Probate Rules 2015 (SA) to swear the death of a missing person in respect of whose estate a grant was sought in circumstances where the missing person had disappeared on 15 December 2017 and had not been seen since and where his body had not been located.

Bampton J was satisfied that the evidence relied on in support of the application established that the missing person had accidentally drowned at sea near Hall Bay on Eyre Peninsula on 15 December 2017 and her Honour granted probate of the Will dated 1 May 2006 of the missing person to the executrix named in that Will.

The cogency of the evidence that will be required to establish the death of the person is likely to be greater than that required to establish that the person has not been known to be alive for a period of at least seven years. Proving death by inference is a positive test whereas establishing the presumption of death after seven years requires proof of the absence of knowledge of the person being alive.

If the court is satisfied that the missing person has died and the date of death is clear, it will not be difficult to fix a time of death. The position would be less straightforward where there is sufficient evidence to support a finding that the missing person has died but little or no basis for determining when it occurred.

In either case, the general rule that the standard of proof in civil cases is the balance of probabilities applies. However, what evidence will be sufficient to justify a finding of fact on the balance of probabilities may depend on the nature of the issue before the court.”

55. It is to be remembered that the Plaintiff has sought declaratory relief. Declaratory relief is addressed in s 75 of the Supreme Court Act1970 (NSW), which provides a wide power to the Court to make a declaration.

56. As has recently been written by the Full Court of the Federal Court (Jagot, Kerr and Anderson JJ) in Clarence City Council v Commonwealth of Australia (2020) 382 ALR 273 at 294 [58], 296 [67]; [2020] FCAFC 134 at [58], [67]:

“Broadly defined, a declaratory judgment is ‘a formal statement by a court pronouncing upon the existence or non-existence of a legal state of affairs’: Lord Woolf and Woolf J, Zamir & Woolf’s The Declaratory Judgment (Sweet & Maxwell, 4^th ed, 2011) (Zamir & Woolf’s The Declaratory Judgment) p 1. Such relief ‘conclusively’ establishes the situation it declares to exist between the parties: Parramatta City Council v Sandell [1973] 1 NSWLR 151 at 167 per Hutley JA.

…

An applicant for declaratory relief must also have standing (or locus standi), which is the metaphor adopted to describe the interest required to obtain relief: Allan v Transurban City Link Ltd [2001] HCA 58; 208 CLR 167 at [15] per Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ. Furthermore, even if a party has standing, there remains the residual question as to whether the Court ought award declaratory relief in the circumstances of the particular case.”

57. As written, a declaratory order is a discretionary remedy. Before a declaration is made, the Court, ordinarily, needs to be satisfied of the factual, and legal, basis for the declaration sought. The majority of the High Court in Bass v Permanent Trustee Company Limited (1999) 198 CLR 334 at 359 [56]; [1999] HCA 9 at [56], stated:

“It is contrary to the judicial process and no part of judicial power to effect a determination of rights by applying the law to facts which are neither agreed nor determined by reference to the evidence in the case.”

58. In Crawford v Davidson-Crawford [2019] NSWSC 728, Ward CJ in Eq wrote, at [32]:

“In order to obtain a declaration, a party must satisfy the requirements articulated in Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581-582; [1992] HCA 10 per Mason CJ, Dawson, Toohey and Gaudron JJ:, namely that: there be a controversy between the parties for determination and not abstract or hypothetical questions; the person seeking relief must have a ‘real interest’; and relief will not be granted if the question ‘is purely hypothetical’, if relief is ‘claimed in relation to circumstances that [have] not occurred and might never happen’ or if ‘the Court’s declaration will produce no foreseeable consequences for the parties’. Their Honours also stated (at 583) that ‘where a person’s rights or liabilities will or might be affected by the exercise or non-exercise of a statutory power following upon an inquiry, that person is prima facie entitled to be accord natural justice in the conduct of the inquiry’.”

59. The Court should, usually, be satisfied that there is a proper contradictor, being “someone presently existing who has a true interest to oppose the declaration sought”: Russian Commercial and Industrial Bank v British Bank for Foreign Trade, Limited [1921] 2 AC 438 at 448 (Lord Dunedin), quoted with approval by Gibbs J (as his Honour then was) (McTiernan, Walsh, Stephen and Mason JJ agreeing on this issue) in Forster v Jododex Australia Pty Limited (1972) 127 CLR 421 at 437–438; [1972] HCA 61; P W Young, Declaratory Orders (2nd ed, 1984, Butterworths) at 15–16 [210].

60. In Zetting v Müller [2017] NSWSC 659, at [13], Parker J pointed out that there was “room for debate about whether [the requirement for a proper contradictor] is an essential requirement before a declaration can be made, or is merely a matter of discretion: Meagher, Gummow and Lehane’s Equity Doctrines and Remedies at [19-115] to [19-125]”.

61. Zetting v Müller was referred to by Bell P, with apparent approval, in Church of the Foursquare Gospel (Australia) Ltd v New Hope Church Swansea Inc [2019] NSWSC 519 at [16].

62. In the present case, there is no contradictor. The Registrar of Births, Deaths and Marriages has filed a submitting appearance, and, in any event, would not have any interest in opposing the declaration that is sought.

63. Be that as it may, I am satisfied that there is no need for a contradictor in this case as the evidence to which I have referred appears to be all one way. The material before the Court provides a proper basis for making the declaration sought by the Plaintiff. In any event, there does not appear to be any person who, or entity which, would have a sufficient interest to oppose the making of the declaration.

64. I am also satisfied of the other matters that would enable the Court to make a declaration. First, there is a controversy, namely whether Mr Beeby is dead. The Court is not being asked to provide an advisory opinion or to answer a question which is purely hypothetical. To the contrary, the resolution of the proceedings, will enable a grant of Probate of his Will and determine how his estate should be distributed. Second, the proceedings concern the “interest” of the Plaintiff and her two children, who need to know how his estate should be distributed. Third, there can be no dispute that the proceedings concern the administration of the deceased’s estate and the Plaintiff is the executor to whom Probate should be granted. Fourth, this Court has jurisdiction to order that Probate should be granted. Fifth, I am satisfied that the Registrar of Births, Deaths and Marriages has an interest in the part of the claim, but has filed a submitting appearance.

Whether Mr Beeby died in the State?

65. As stated, the Plaintiff seeks an order pursuant to the Births, Deaths and Marriages Registration Act that the death of Mr Beeby be registered. The Court’s power to do so is found in s 37 of the Act:

“If a court (including any court of another State or the Commonwealth) finds that a person whose death is not registered under this Act died in the State, the court may order registration of the death.”

66. Section 37 provides useful, and clear, legislative guidance as to the territorial reach and the intended operation of the Births, Deaths and Marriages Registration Act by the use of the term “died in the State”. The question raised is whether it is likely that Mr Beeby, if he died in the Tasman Sea off the coast of New South Wales, died in the State of New South Wales?

67. Mr McGrath, astutely, and properly, raised this matter in his written submissions. To make an order, I must be satisfied, in the circumstances of this case, assuming I was satisfied, on the balance of probabilities that Mr Beeby had died, that he had “died in the State”.

68. The boundaries of the States, including New South Wales, end “at the low-water mark and at the closing lines of bays and gulfs”. Those boundaries do not encompass the territorial sea: Port Macdonnell Professional Fishermen’s Association Inc v The State of South Australia (1989) 168 CLR 340 at 358 (The Court); [1989] HCA 49. Adjacent waters are not part of the territory of New South Wales, which does not extend seaward beyond the low-water mark, except where the coastline is indented by bays or gulfs (in which case the closing lines mark the boundary). They are physically external to New South Wales.

69. This has recently been confirmed in Lavender v Director of Fisheries Compliance, Department of Industry Skills and Regional Development (2018) 359 ALR 96 at 130 [151]; [2018] NSWCA 174 at [151] (Basten JA, Beazley P agreeing):

“The coastal boundaries of the States were given consideration in both Bonser v La Macchia and the Seas and Submerged Lands Case. In Port MacDonnell the joint judgment of the whole Court said that the Seas and Submerged Lands Case had ‘decided that the boundaries of the States ended at the low water mark and at the closing lines of bays and gulfs’. There is no dispute that this principle applied when the colony was established and defined in the second commission issued to Governor Phillip on 2 April 1787.” (citations omitted)

70. This conclusion is different from the question whether the laws of the State apply with respect to “coastal waters of the State … as if the coastal waters … were within the limits of the State”: Interpretation Act 1987 (NSW), s 59.

71. Such an observation relies upon the distinction between the territory of a State and its general legislative range or power. Philp J (as his Honour then was), in D v Commissioner of Taxes [1941] St R Qd 218 wrote, at 227–228, referring to the advice of the Privy Council in Croft v Dunphy [1933] AC 156:

“Thus in the case cited it was held that the Canadian Parliament could validly control certain acts done on the high seas within twelve miles of the coast of Canada, but no one would suggest that a spot eleven miles from that coast is in Canada. In other words, the area of the territory of a country is not coincident with the area over which its legislation may range.”

72. Notwithstanding that Gibbs J (as his Honour then was) in New South Wales v Commonwealth (1975) 135 CLR 337 at 408; [1975] HCA 58, came to a different view, the other judges of the High Court expressed the same view as Philp J that New South Wales extends only to the mean low water mark: at 360, 371 (Barwick CJ), 378 (McTiernan J), 459, 461, 465, 467–468 (Mason J). I am satisfied that the distinction drawn by Philp J is a correct one.

73. As has been referred to above, whilst the last known position of Mr Beeby’s vessel is not entirely clear, there is evidence that it was about 15 nautical miles north of Seal Rocks and about 16 nautical miles east of the New South Wales coastline. In the circumstances, even if the events occurred in “waters adjacent to”, the State of New South Wales, it is not possible to find that Mr Beeby died “in the State” for the purposes of s 37 of the Births, Deaths and Marriages Registration Act.

74. It follows that the court may not order registration of the death of Mr Beeby and registration of his death will have to be effected in another way. This conclusion is accepted by counsel for the Plaintiff who submitted at par 63 of his written submissions:

“In short, it would be unrealistic to submit that the death happened in NSW coastal waters. The result would appear to be that the Court’s power to direct that a death certificate be issued under section 37 Births, Deaths & Marriages Registration Act 1995 (NSW) is not enlivened.”

75. There is no doubt that a death certificate has evidentiary effect. Section 49 of the Births, Deaths and Marriages Registration Act relevantly provides:

(2) A certificate under subsection (1) (a) is admissible in legal proceedings as evidence of -

(a) the entry to which the certificate relates, and

(b) the facts recorded in the entry.

76. However, the death certificate is not the only way to prove the facts stated in it.

The Coroners Act

77. The evidence is to the effect that there has not yet been a coronial inquest into Mr Beeby’s death. In email correspondence dated 16 July 2020 addressed to the Court, the solicitor for the Plaintiff suggested that the Coroner was still investigating the matter and that a hearing was unlikely to occur before February 2021.

78. Once the inquest is held, or before it is, if the Coroner thinks it appropriate, written notice must be given to the Registrar of Births, Deaths and Marriages pursuant to s 34 of the Coroners Act:

(1) A coroner must, for the purpose of enabling registration of the death of a person to be effected or completed, give written notice to the Registrar of Births, Deaths and Marriages of such particulars as are known to the coroner relating to the death of the person if the coroner—

(a) holds an inquest concerning the death, or

(b) dispenses with the holding of an inquest concerning the death, or

(c) suspends an inquest concerning the death.

(2) If a coroner is satisfied (whether before or during an inquest concerning the death of a person) that there will be a delay in concluding the inquest and that the coroner is able, on the basis of such evidence as the coroner considers sufficient, to determine the particulars relating to the death of the person, the coroner may, for the purpose of enabling registration of the death of the person to be effected or completed, make that determination and give written notice of the determination to the Registrar of Births, Deaths and Marriages.

79. As stated, the Registrar of Births, Deaths and Marriages is unable, in the circumstances of this case, to register the death of Mr Beeby absent a notice given by the Coroner pursuant to ss 34(1) or 34(2) of the Coroners Act: Births, Deaths and Marriages Registration Act, s 38(1)(c).

80. Although I do observe that the Registrar retains the ability, pursuant to s 38(2)(b) of the Births, Deaths and Marriages Registration Act, to register a death if “of the opinion that, having regard to the circumstances of the case, it is proper that the death should be registered without any notice, order or document referred to in [s 38(1)]”.

81. Thus, even though I have concluded that the court cannot order that a death certificate issue, a copy of these reasons for judgment, if provided to the Registrar of Births, Deaths and Marriages, may lead her to conclude that, having regard to the circumstances of the case, it is proper that the death should be registered without any notice, order or document referred to in s 38(1).

Determination

82. There is no suggestion that the Plaintiff and Mr Beeby did not have a close relationship with each other or that he did not have a close relationship with each of his children. There is no evidence at all to indicate that there is any reason for him not to communicate with those persons if he were alive.

83. Further, there are no other facts which might indicate that he absconded; the time when he disappeared is known, as is the fact that he was in the vessel when it capsized; extensive searches were carried out subsequently, without success in finding his body; and there is no evidence that he has contacted the Plaintiff, or either of his children, since then.

84. Mr Beeby’s accountant (who also acts for the Plaintiff and their company A & L Enterprises Pty Ltd), who has been his accountant since early 2000, stated that Mr Beeby had sufficient assets to meet his liabilities and was not under pressure to pay his liabilities.

85. In this case, there is a complete absence of evidence that Mr Beeby had such a compelling motive to disappear as would justify the inference that he might have set the stage, so elaborately, even if he had been able to do so, which I doubt, to give the impression that he had come to his death in the sea.

86. The evidence is clearly supportive of the conclusion, notwithstanding that the body of Mr Beeby has not been found, that he died on 26 January 2020. The evidence is detailed, and I have provided a summary of that evidence. The evidence points, convincingly and irresistibly, to Mr Beeby having died within a short period of having entered the sea in the events that have been outlined. Scott’s direct evidence of what he saw and heard, taken with the evidence of the unsuccessful searches is clear.

87. Even if I am wrong in reaching that conclusion, the indirect evidence available is sufficient to support the inference of the death of Mr Beeby.

88. In my view, the preponderance of probabilities strongly favours the conclusion that Mr Beeby is dead; that he died on 26 January 2020; that he died at sea, north of Seal Rocks and east of the New South Wales coastline. A declaration to that effect should now be made. The clear evidence, and indeed, in my opinion, the only inference reasonably open on the facts, is that Mr Beeby died soon after entering the sea.

89. The case shows circumstances in which the court is able to make the finding that Mr Beeby is dead and allow his widow to obtain Probate of his Will without requiring the issue of a death certificate.

90. In the circumstances, the Court:

1. Declares that the Court is satisfied that Alan Bruce Beeby died on 26 January 2020, during a voyage to a port in the State of New South Wales.

2. Orders that subject to compliance with the Probate rules of Court, Probate in common form of the Will dated 17 November 2017 of Alan Bruce Beeby, be granted to the Plaintiff.

3. Dispenses with the requirement to file a death certificate of Alan Bruce Beeby, unless and until a notice given by a coroner under ss 34(1) or (2) of the Coroners Act 2009 (NSW) for the purpose of effecting or completing registration of the death is issued.

4. Orders that the matter be remitted to the Senior Deputy Registrar in Probate to complete the grant.

5. Orders that the Plaintiff’s costs, calculated on the indemnity basis, of the proceedings, be paid out of the estate of Alan Bruce Beeby.

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Decision last updated: 30 October 2020